The growing number of individual state actions and the recent recommendation from the Dairy Industry Advisory Committee might actually spur Congress to move on immigration.

By Ryan Miltner, attorney

When it comes to legislation dealing with immigration, individual state legislatures are doing far more than Congress.

In recent months, a number of states have voted on bills aimed at addressing illegal immigration. In some instances, the legislation has passed. In others, the measures have either stalled or been defeated. The most interesting aspect of these state-based attempts at regulating immigration is not the content of the laws themselves, but the fact that so many states are involved in legislating on a topic that is predominantly a federal issue.

Under our Constitution, laws defining who is or is not a citizen of the United States and who may or may not enter the country are matters for determination by the national government--not the individual states. The principal rationale for national supremacy on the issues of citizenship and immigration is uniformity. Just imagine the problems that would arise if an immigrant was legal in one state, and illegal in another.

But in today’s environment, where many citizens are increasingly frustrated and angry about the federal government’s actions (or lack thereof) on immigration, many states have taken the matter into their own hands.

The first real state action was in Arizona, where the state legislature enacted a law that required all employers to utilize the national E-Verify database to check the status of newly hired workers. Arizona employers that did not use E-Verify and hired workers that were later determined to be illegal faced mandatory suspensions and revocations of their business licenses. The conflict with federal laws arises because the federal government does not make E-Verify use mandatory--only compliance with Form I-9 requirements.

Other states have passed their own versions of Arizona’s E-Verify law, and Arizona’s later legislation regarding the requirement that law enforcement check the documents of suspected immigrants has been heavily documented and discussed. Utah just passed its own version of a comprehensive immigration reform package. But ultimately, all these actions may be moot.

In December, the United States Supreme Court heard arguments on whether the Arizona E-Verify legislation was constitutional. Based on the questioning from the justices during oral argument, the decision will be a close one, although many followers expect the law to be struck down. Regardless of the ultimate decision, it is likely that individual states will continue to seek their own solutions to this national problem.

Tamar Jacoby is the CEO of ImmigrationWorks USA, an association of business owners (including farms and farm organizations) advocating for comprehensive federal immigration reform. In an op-ed article in the Los Angeles Times on March 25, 2011, Ms. Jacoby wrote that the growing number of individual state actions might actually spur Congress to move on immigration: “In the short run, a crop of state bills would send a powerful signal to Washington. . . . And eventually, if enough states joined in, they would create a situation so intolerable that even Washington couldn't ignore it.”

For dairy producers, someone in Washington does understand and has been listening. The USDA Dairy Industry Advisory Committee finalized its report to the USDA Secretary earlier this month. Among its 23 recommendations was one directed squarely at the need for clarity on immigration. The committee recommended, “The Secretary should use his influence with other agencies and Congress to provide a legal means for dairy farms to employ year-around long-term immigrant labor. Provide assurance that existing farm laborers have the opportunity to obtain permanent resident status.”

Perhaps between the actions of the individual states and reports like those of the Dairy Industry Advisory Committee, dairy producers can be guardedly optimistic about Congress eventually moving forward on immigration reform.

Ryan Miltner is an agricultural and estate planning lawyer in private practice. His agricultural practice is focused on dairy policy and the economic regulation of the dairy industry. The opinions in this article are his own observations prepared for Dairy Today and do not necessarily reflect the opinions of any of his clients. Contact him at ryan@miltnerlawfirm.com.